Leal v. Wigram

12 Johns. 88

• Court: New York Supreme Court
• Decided: January 15, 1815
• Status: Published

Opinion

Per Curiam.

One question made upon the argument of thie case was, whether an action could be maintained by the sheriff upon his bond, until he had been sued for the escape, and judgment obtained against him. This objection can arise only on the supposition," that the judgment which has been recovered against the sheriff .was void, which we do not think was the case. If that judgment had been obtained by fraud, or collusion with the sheriff or if he had waived any defence which went to the merits of the action, and which would have defeated the recovery against him, it might have been a good objection by the bail ; but no such matter was waived. The right of being sued by bill, instead of by writ, which he waived, was a mere personal privilege. This did not touch the merits of the cause, nor can it be deemed to have injured any other person. All the evidence given in relation to the other bond was irrelevant.! The escape relied on was proved to have been made before the second bond was given, and the recovery against the sheriff was for that escape. The new bond was prospective, and could not release the surety on the former bond for the previous escape ; and the plaintiff is, accordingly, entitled to judgment in this1 case, to indemnify him against the •recovery for that escape. •

Judgment for the plaintiff.